First Amendment advocates are closely watching whether the government will prosecute the anti-secrecy group WikiLeaks as a co-conspirator in the case of Army Pfc. Bradley Manning. The case, advocates say, could set a dangerous precedent that applies to mainstream media outlets and potentially criminalizes the practice of investigative journalism. Manning, who is facing a court-martial in connection with the leaking of 700,000 documents and other materials to WikiLeaks, pleaded guilty this year.
Attorney General Eric H. Holder Jr. told the House Judiciary Committee last week that prosecuting the press for disclosing classified material is not “wise policy.”
“The focus should be on those people who break their oath and put the American people at risk, not the reporters who gather the information,” he said in response to questions about the investigation involving the AP, which reported on a foiled plot involving the al-Qaeda affiliate in Yemen.
The office of the U.S. attorney for the District of Columbia, Ronald Machen, who is involved in both the AP and Kim cases, said it had “exhausted all non-media alternatives for collecting this evidence” before seeking Rosen’s personal e-mails.
A U.S. magistrate judge, Alan Kay, signed off on the search for two days’ worth of Rosen’s personal e-mails and all of his correspondence with Kim in May 2010. The warrant was unsealed in 2011, but a Fox executive confirmed that the network was not aware of the characterization of Rosen as a co-conspirator until Monday.
The Justice Department was not required to inform Rosen that his personal e-mails would be seized, according to an opinion by U.S. District Judge Royce C. Lamberth in 2010.
Brit Hume, a senior political analyst on Fox, said on the air Monday that the Justice Department had crossed a “clear bright line” when it seized the records on what he called “the pretext that this activity was criminal.”
“The Obama-Holder Justice Department is now prepared to treat the ordinary newsgathering activities of reporters, trying to seek information from government officials, as a possible crime,” he said. “I can’t think of a case in which that’s happened before.”
Scott Wilson contributed to this report.